93 Decision Citation: BVA 93-11330
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-12 525 ) DATE
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THE ISSUE
Entitlement to an increased (compensable) rating for bilateral
hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michele Florack, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals (Board)
on appeal from a February 1991 rating decision by the Denver,
Colorado, Regional Office (RO). The veteran had verified
active service from September 1977 to August 1990 and
unverified prior periods of service totalling more than eight
years. The notice of disagreement was received in September
1991. The statement of the case was issued in September
1991. The substantive appeal, in which the veteran requested
a personal hearing, was received in November 1991. A personal
hearing was conducted at the RO in December 1991. A
supplemental statement of the case was issued in April 1992.
The appeal was received and docketed at the Board in July
1992. The claims file was then referred to the veteran's
accredited representative, Disabled American Veterans, who
submitted additional written argument to the Board in November
1992. The case is now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that a compensable rating is warranted
for his service-connected hearing loss because he believes
that his hearing loss has gotten worse and interferes with
social and work relationships.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991), following review and consideration of all evidence and
material of record in the veteran's claim file, and for the
reasons and bases hereinafter set forth, it is the decision of
the Board that the preponderance of the evidence is against
the claim for an increased (compensable) evaluation for
service-connected hearing loss.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran has level II hearing in each ear.
CONCLUSION OF LAW
An increased (compensable) rating for bilateral hearing loss
is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§§ 4.3, 4.85, and Part 4, Code 6100 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is well-grounded within the meaning of 38
U.S.C.A. § 5107(a) (West 1991). That is, we find that he has
presented a claim which is plausible or capable of substan-
tiation. The Department of Veteran's Affairs (VA) therefore
has a duty to assist the veteran in the development of facts
pertinent to his claim. 38 U.S.C.A. § 5107(a). The Board is
satisfied that all relevant facts have been properly developed
and that no further assistance is required to comply with the
duty to assist him mandated by § 5107(a).
Evaluations of bilateral defective hearing range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of speech discrimi-
nation tests together with the average hearing threshold
levels as measured by pure tone audiometry tests in the
frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second.
To evaluate the degree of disability for bilateral service-
connected hearing loss, the revised rating schedule esta-
blishes eleven (11) auditory acuity levels, designated from
level I for essentially normal acuity, through level XI for
profound deafness. 38 C.F.R. § 4.85 and Part 4, Codes
6100-6110 (1992).
On VA audiometric examination, in February 1991, pure tone air
conduction threshold levels in decibels in the veteran's right
ear for the frequencies 1,000 hertz, 2,000 hertz, 3,000 hertz,
and 4,000 hertz were 15, 30, 60, and 60, respectively, for a
pure tone threshold average of 41 decibels. Speech
discrimination for the right ear was 84 percent. Pure tone
air conduction threshold levels in decibels in the veteran's
left ear for those same frequencies were 15, 45, 65, and 70
decibels, respectively, for a pure tone average of 49
decibels. Speech discrimination for the left ear was 84
percent. Such audiometric findings reflect level II hearing
in each ear. An audiometric evaluation done in October 1991
was for treatment purposes and was not certified for rating
purposes. Nevertheless, the findings on that examination were
essentially consistent with those on the February 1991 rating
examination. A hearing acuity of Level II in each ear
warrants a noncompensable rating and, consequently, under the
provisions of the rating schedule, a compensable rating is not
assignable. It is well-recognized that disability ratings for
hearing impairment are derived by a mechanical application of
the rating schedule to the numeric designations assigned after
audiometric evaluations are rendered. Lendenmann v. Principi
3 Vet.App. 345 (1992). Here, the "mechanical" application of
the rating schedule leads us to the conclusion that a compens-
able rating is not warranted.
Further, the provisions of 38 C.F.R. § 4.7 (1992) are not
applicable inasmuch as the rating schedule contains specific
criteria (in terms of audiometric test results) for a
compensable rating. Those criteria have not been met in this
case.
ORDER
An increased (compensable) rating for service-connected
bilateral hearing loss is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
GEORGE R. SENYK
BRUCE E. HYMAN
(CONTINUED ON NEXT PAGE)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business without
awaiting assignment of an additional Member to the Section
when the Section is composed of fewer than three Members due
to absence of a Member, vacancy on the Board or inability of
the Member assigned to the Section to serve on the panel. The
Chairman has directed that the Section proceed with the
transaction of business, including the issuance of decisions,
without awaiting the assignment of a third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning an
issue which was before the Board was filed with the agency of
original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.